C-79/70

JUDGMENT OF 7. 7. 1971 — CASE 79/70

not therefore make it impossible that sion is deemed to have been made, there should be 'no decision' within the said authority still hoped to be the meaning of that provision. able to give a favourable reply to the complaint. 4. The periods laid down in Article 91 of the Staff Regulations are matters 5. A decision which merely confirms a of public policy. Therefore, the pro­ previous decision, even an implied vision that at the expiration of two decision, cannot affect an official months from the date when a com­ adversely. Therefore an appeal lodged plaint has been lodged, the fact that against that subsequent decision can­ the authority has taken no decision not start the period laid down by the must be considered an implied deci­ Staff Regulations for lodging the sion rejecting it applies even where, appeal directed against the previous at the time when that implied deci­ decision to run afresh.

In Case 79/70

Helmut Müllers, an official of the Economic and Social Committee of the EEC and EAEC, residing at 31 avenue Marius-Renard, Anderlecht, repre­ sented by Marcel Slusny, Advocate at the Cour d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34 B/IV rue Phillippe-II,

applicant,

v

THE COURT (Second Chamber)

composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

JUDGMENT OF 7. 7. 1971 — CASE 79/70

. . complaint, the Sec ing Officer. The sum of Bfrs 3331 was retary-General of the Economic and composed of: Social Committee has asked the Board — the standard monthly allowance in of the Heads of Administration of the tended to cover the expenditure re Institutions of the Communities to ferred to in Article 4 (1) (c) of give an opinion in principle on Article Decision No 1001/65 as amended by 3 of Annex VII and Article 6 of the Article 4 of Decision No 1852/69 A implementing provisions relating to (Bfrs 450 for September and Bfrs the education allowance.

3. On 19 February 1970, the applicant to the Chairman of the Board of the sent a memorandum ('Vermerk') to Mr Heads of Administration, the Secretary- Pixius, Head of Division C, in which General of the defendant Committee, he stated that he was 'submitting an referring to the applicant's case, stated objection' ('Widerspruch einlegen') in particular that:

— the Committee 'wonders' whether curred is founded 'on the finding that Article 6 (2) of Decision No 1001/65 transport costs are normally equiva­ and identical decisions adopted by lent to those which arise from the the other institutions is in accordance use of a public means of transport. with Article 3 of Annex VII to the The refusal to reimburse costs on the Staff Regulations. In other words, basis of individual evidence is there­ does the strict obligation laid down fore one of the fundamental con­ in Article 6 (2) lead to an infringe­ siderations of the general implement­ ment of the right of officials to be ing provisions, the aim of which is reimbursed to the extent of their to avoid possible abuses'. actual expenditure? 5. On 11 December 1970, the applicant — the Committee considered that such lodged the present application. was in fact the case, so that a third After hearing the report of the Judge- paragraph should be added to Article Rapporteur and the views of the 6 worded as follows: Advocate-General, the Court (Second 'However, an official shall have the Chamber) decided to open the oral pro­ right to request reimbursement of cedure without a preparatory inquiry. his expenses upon production of sup- The parties presented oral argument at Dortine documents'. the hearing on 9 June 1971. The Advocate-General delivered his At its meeting on 20 May 1970, the preparatory Committee for the Board opinion at the hearing on 24 June 1971. of the Heads of Administration decided to submit to the latter the question whether 'an official who is obliged to II — Conclusions of the par­ drive his son ,to school in his private ties car because there are no adequate public means of transport may be reimbursed In his application, the applicant claims for the actual transport costs'. At their that the Court should: meeting on 12 June 1970, the Heads 1. declare that the decision of the Secre­ of Administration replied to this ques­ tary of the Economic and Social Com­ tion in the negative. mittee of 10 September 1970 is null 4. By decision or 10 September 1970, and void; notified on 18 September 1970, the Secretary-General of the defendant 2. in so far as is necessary, declare that Committee rejected the applicant's Decision No 1001/65 on the applica­ tion of Article 3 of Annex VII to the 'objection' of 19 February 1970, holding in particular that: Staff Regulations is void;

tion in other respects, alters heading 3 10 September 1970. On the other hand, of those conclusions by requesting re­ the documents fixing the amount of the imbursement of the difference between education allowance did not constitute the allowances for transport costs which measures which could be contested, he has been granted and the costs since they were not issued by a body actually incurred as indicated by him which was competent to take decisions in his memorandum of 8 December of principle. Then again, the 'objection' 1969. of 19 February 1970 could not be called At tne hearing, the applicant stated that a 'request' or 'complaint' within the he abandoned the conclusions for the meaning of Article 90 of the Staff annulment of Decision No 1001/65 and Regulations since it was not addressed requested only that the Court declare to the appointing authority. Therefore, Article 6 of that decision illegal on a that 'objection' could not give rise to point of law to the extent to which the an implied decision rejecting it, in interpretation of that provision given by accordance with the second paragraph the defendant is held to be correct. of Article 91 (2) of the Staff Regula­ The defendant contends that the applica­ tions. Finally, the applicant would have tion should be dismissed as unfounded. acted improperly if he had immediately referred the matter to the Court when he knew that the defendant was at that III — Submissions and argu­ time trying to obtain a favourable solu- ments of the parties The defendant states that it leaves the The submissions and arguments of the question of the admissibility of the parties may be summarized as follows: application to the discretion of the Court. The legal nature of the 'objection' sub­ 1. Designation of the defendant mitted by the applicant is doubtful. This letter was not addressed to his immedi­ The applicant designates as defendant ate superior as required by Article 90 the Economic and Social Committee of the Staff Regulation. However, it can and 'in so far as is necessary', the Coun­ be considered that this is an admissible cil. The defendant Committee states that complaint within the meaning of that in accordance with the second para­ provision, since the 'objection' was sent graph of Article 1 of the Staff Regula­ to the competent authority. tions of Officials and the case-law of the Court it must be considered as the only 3. The substance of the case defendant In the discussion on the substance of

mittee moreover stated the same idea by costs incurred directly and compulsorily also providing in its general implement within the context of the curriculum ing decisions for the reimbursement of and not to those which are only in transport costs. directly' related to attending school and If Article 6 of Decision No 1001/65 had the amount of which depends largely the narrow meaning which the defendant on the personal decision of the official gives it, it would have to be considered concerned. In these circumstances, the void because it conflicts with Article 3 institutions were free to limit the ex of Annex VII to the Staff Regulations. pense of this allowance only for the sake But, in fact, it must be interpreted to of fairness, by providing nevertheless mean that it only refers to the case that transport costs could be reimbursed. which there are means of transport They had placed all officials concerned serving the school and which the child on an equal footing by fixing a uniform does not use; this is not so in the basis of calculation for all officials who

. .'. Article 6 of the decision would regards transport costs only be void if it restricted the scope lne detendant cannot claim tnat tne of Article 3 of Annex VII of the Staff way in which it applies Articles 6 puts Regulations; but, for the reasons which officials on an equal footing. In fact, at have been given, on the contrary it the present time, children living in cer widens the field of application of that tain districts further from the European provision.

Therefore, Article 6 (2) only blame himself for having made his is applicable whenever a means of trans home in a district which does not have port either public or serving the school good communications with the European is not used, and it is not important School cannot be accepted. whether such a means exists or not. The Nor can any argument be based upon applicant's statement that a child of six the danger of possible abuses of the years old cannot be expected to make system, since the maximum amount of a complicated journey alone every day, Bfrs 1325 per month enables exactly this although true, is however irrelevant. danger to be avoided. Moreover, the applicant chose of his The applicant explains the alteration to own accord to live in a district where heading 3 of his original conclusions not many Community officials five and and states that he only requests the which therefore does not have good Court to take a decision of principle communications with the European and to leave it to the parties to make School. If the applicant's argument were the calculations. correct, the Administration would be The defendant maintains that the ex obliged to reimburse particularly expen pression 'education costs' only refers to sive transport costs such as taxi fares.

4 In the absence of such provisions to the contrary, it must therefore be acknowledge that the said Committee has the capacity to appear before the Court in proceedings between it and one of its officials.

5 The present application must therefore be considered as directed solely against the Economic and Social Committee.

Admissibility

6 Although the defendant has not challenged the admissibility of the applica-* tion, the Court must examine of its own motion whether the application is out of time.

7 On 8 December 1969, the applicant asked the Administration, giving detailed reasons in support of his request, to grant him an education allowance of Bfrs 4 410 for the period from 17 September to 31 December 1969.

8 By a document dated 12 December 1969 and signed by the Financial Con­ troller and the Authorizing Officer on 15 December, this allowance was fixed at Bfrs 3 250 for the period in question.

14 The applicant then had the choice of either directly lodging an appeal within the period of three months laid down by the first paragraph of Article 91 (2) of the Staff Regulations of Officials, or of preserving the right of appeal by submitting to the appointing authority within that period under Article 90 of the same Staff Regulations a complaint against the decision taken relating to him.

15 In fact he used the second possibility by his memorandum of 19 February 1970 which, although it was described by him as an 'objection' and did not observe the conditions for lodging a complaint laid down in Article 90, must be considered as a complaint within the meaning of that article since it obviously sought to obtain a decision from the appointing authority on the question at issue.

16 Under the second subparagraph of Article 91 (2) of the Staff Regulations, 'Where the competent authority takes no decision in respect of a request or a complaint from a person covered by these Staff Regulations within two months from the date on which it was lodged, this shall be deemed to con­ stitute an implied decision rejecting it' and 'an appeal against such decision shall be lodged within a further two months'.

17 The memorandum of 31 March 1970 merely gave notice that a final reply would be given subsequendy and it did not constitute a decision so that, in

JUDGMENT OF 7. 7. 1971 — CASE 79/70

accordance with the provision quoted, the defendant was deemed to have rejected the complaint of 19 February 1970 by an implied decision made in April 1970.

Costs

24 It follows from Article 69 (2) and Article 70 of the Rules of Procedure that the unsuccessful party shall be ordered to pay the costs but that institutions shall bear their own costs in applications by servants of the Communities.

25 However, under Article 69 (3) where the circumstances are exceptional, the Court may order that the parties shall bear their own costs in whole or in part.

26 In this case, since the applicant was misled by the letter of 31 March 1970 requesting him to 'wait', that provision must be applied and the defendant must be ordered to bear the applicant's costs.

MÜLLERS v ECONOMIC AND SOCIAL COMMITTEE

On those grounds,

Delivered in open court in Luxembourg on 7 July 1971.

A. Van Houtte A. Trabucchi Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 24 JUNE 1971

Mr President, plainly inadmissible. Members of the Court, In fact, the applicant set out his claims in an application for the grant of the The present case relates to the calcula­ education allowance dated 8 December tion of the allowance which Mr Müllers, 1969 and those claims were rejected by an official of the Economic and Social a decision of 15 December 1969. Committee, claims to be entitled to for On 19 February 1970, the applicant 1969 to reimburse the transport costs protested against this rejection in a letter, of his six year-old son who attends the the nature of which I shall come back European School in Brussels. to presently. In my opinion the application seems In application of Article 91 (2) of the